Two corporations, IBM and the ANZ Bank, are part of a boycott of this blog and my advertising revenue has plummeted. It was never a lot of money, but it had helped pay the bills.
The boycott is a consequence of an article attacking gay marriage published at On Line Opinion. I have never published anything on gay marriage, and I am not against the concept, but because advertising for this blog is sold as a block with advertising for On Line Opinion, and because the gay lobby is apparently intolerant of alternative views, I am suffering.
And it is not as though On Line Opinion is running a campaign against gays, lesbians or their right to marry – quite the contrary. On Line Opinion publishes a diversity of opinions with the aim of promoting Socratic dialogue.
As Christopher Pearson writes in The Australian today, issues of principles are at stake here concerning freedom of political debate in this country and the character of our civilization.
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The Offending Article:
http://www.onlineopinion.com.au/view.asp?article=11268&page=0
Skeptical Lawyer on the Boycott:
http://skepticlawyer.com.au/2011/02/05/of-secondary-boycotts-free-speech-and-revenue/
Christopher Pearson explains the situation in today’s The Weekend Australian:
http://www.theaustralian.com.au/news/opinion/oversensitivity-can-only-compromise-debate/story-e6frg6zo-1226000416817
There is a donate button at the top right-hand corner of this blog.
Jennifer Marohasy BSc PhD is a critical thinker with expertise in the scientific method.
Jen, The article at OLO that has caused all the problems makes assumptions about men and women and how they are different. It reminded me of the feminists getting upset when the university professor in the US correctly explained that men had on average greater aptitude for abstract mathematical concepts and women on average better language skills.
Jen I will make a longer comment later about the subject of this post but first is there any way you can amend your donate button so that donors are able to make a donation greater than $50
Jennifer, sceptical lawyer has a good summary of this issue:
“I don’t think this is about free speech, or if it is, the free speech effects are incidental to a particular form of anti-commercial conduct. The reason I gave a ‘factory making widgets’ example in the post is because secondary boycotts are almost never about someone’s opinions. Historically, they have arisen in the context of labour disputes and environmental campaigns… and the reason the book has so often been thrown at unions and greenies in days gone by is not because unions and greenies are especially anti-competitive in their behaviour. It’s because it’s damn hard to hide a picket, and even when there is more secretive behaviour (deals cut with third parties not to supply the factory using ‘scab’ labour, for example), it’s usually pretty obvious what’s going on, the affected company (or the ACCC) brings suit, and the offending arrangements the union or green group has made are exposed during the discovery process.
So, here goes (if you don’t like long legal-ish comments, then feel free to skip this, as it will break Pavlov’s Cat’s ‘three paragraphs rule’ big style).
1. It’s important to remember that Australian competition law is currently in a state of flux. On January 1, 2011, the Trade Practices Act 1974 was renamed the Competition and Consumer Act 2010. This wasn’t a mere renaming, however, as many provisions have been moved, the old Consumer Protection laws have been shifted to a new, special schedule of their own, and the ACCC has been given more ‘teeth’, particularly in its ability to bring representative actions. A very handy summary of the renamed and rejigged sections is available here (AAR is a seriously good firm when it comes to competition and consumer law):
http://www.aar.com.au/pubs/comp/focompfeb11.htm
I’ll continue to use ‘TPA’ in this comment, but do remember that’s only for everyone’s convenience, and that the Act has changed; the famous section 52, for example (‘misleading and deceptive conduct in trade or commerce’) is now s 18. The new act is here:
http://www.austlii.edu.au/au/legis/cth/consol_act/caca2010265/index.html#s151am
A neat summary of ‘representative actions’ (making it easier to complain to the ACCC and then get them to act) is available here:
http://findarticles.com/p/articles/mi_qa5393/is_200710/ai_n21298477/
2. Very generally, the TPA applies to corporations, not to private individuals, particularly in many of its consumer protection provisions. That’s why — so that individuals can’t get away with this stuff — the states have enacted various Fair Trading Acts, which mean that the same rules apply to natural persons — ie, you and me, not just XYZ Ltd. This is designed to catch everyone from the local newsagent to community organisations. It’s important to remember that anti-competitive behaviour is not just something that corporations do, and that it doesn’t always arise in the context of trade or commerce.
3. Sometimes, however, the TPA applies to both natural and juridical persons. The relevant secondary boycott provision is an example of this:
http://www.austlii.edu.au/au/legis/cth/consol_act/caca2010265/s45d.html
As a general principle, this application to individuals is not under the Corporations Power [Section 51(xx)], but under the Interstate Trade and Commerce power [s 51(i)]. Now I happen to think that the creeping accretion of power to the Commonwealth under these s 51 ‘heads’ (especially the Corporations Power) is a Bad Thing for Australia’s ‘Federal Compact’. But: I don’t make the rules, the High Court does, which means that things like ‘person’ and ‘in trade or commerce’ are no longer construed as strictly as they once were. I suspect that, were David Fasold & Anor v Allen Roberts & Anor [1997] FCA 439 [The ‘Noah’s Ark Case’] litigated today, the outcome would be different.
4. Like all potential disputes, any litigation on this issue, however brought, will turn on facts and evidence. I will say that the statement from ANZ’s PR person was, um, unwise. If I were the other side, I’d want discovery of every bloody document leading up to that decision to see whether secondary boycott could be prima facie made out on the facts. IBM has been better advised, which is why their response — to use Pearson’s rather apt expression — was so ‘gnomic’.
5. I have no doubt that decisions made as a result of pressure brought to bear thanks to secondary boycotting are routinely dressed up as bog standard commercial decisions. And that’s inevitable. Litigation isn’t fun (except, maybe, for a certain sort of lawyer), and lots of organisations — corporations, activist groups, unions, associations, etc — work damn hard to stay out of court.
6. All jurisdictions of which I am aware permit secondary boycotts when these are undertaken by consumers. These are the fairly standard ‘don’t buy Japanese tuna, they hunt whales’ style of secondary boycott. They are permitted, I suspect, because they do not work, except (perhaps) during the lead up to conflict. Some jurisdictions (an example is France, under the Code Civil) allow trade unions to make an application to the relevant competition body in order to be permitted to engage in secondary boycott. This is restricted to labour unions, however, not commercial entities or activist groups. The rationale for this is that unions are pretty open and honest about who they are going after and why… it is, as I’ve said, hard to hide a picket.
7. A final, non-legal point. There seems to be a perception that if a group is disadvantaged in some way, or a minority, or ‘Club Virtue’s’ flavour du jour for whatever reason, that status automatically buys it the right to stomp all over the rule of law and behave with extraordinary incivility. Um, no. The oppression has to be pretty damn serious in order to activate the presumptions made by the likes of Martin Luther King in Letter from Birmingham Jail and Henry David Thoreau in ‘Civil Disobedience’. Otherwise, protest and activism risks being rendered meaningless and trivial, and when there really is a serious derogation from fundamental civil rights, the majority response to yet another species of carry-on is likely to be ‘oh, them again, they’re always going off half-cocked’.
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I’m a bit disappointed that Jen has not received more supportive comments on this post but it is Sunday after all
I’ve read the articles attached to Jen’s post and I’m yet to be persuaded that this is a secondary boycott issue
My view is (and I think it’s been mentioned before) whether an advertiser can choose where to place their advertising when there’s a block advertising contract as there is in this case
If an advertiser chooses to terminate their advertising because of an article written by one of the parties who is a party to an advertising contract covering all of the parties – is this a secondary boycott – my view is that it is not – but I am prepared to be persuaded
And before I’m asked have I read all the articles including that written by sceptic lawyer yes I have and I’ve taken an interest because my view is that if commentators appreciate a blog then they have to be prepared to contribute to the cost of running the blog
And my other point is that yes … I have a law degree
val – I’ve always treated Jen’s advertising as her business, not mine.
I’ve always contributed to the blog as I enjoy it.
Thanks Cohenite.
Hi Val, Thanks for your concern. I’ve changed the donation button. And on the issue of few comments: I’ve raised two issues unfamiliar to this blog. Neither are about science – though Dennis has attempted a link in his comment above.
This is what got me a little annoyed.
“A group called Ethical Investments had objected after their ads sometimes appeared on pages alongside articles questioning anthropogenic global warming”.
IASH members code: “Content articulating views intended or reasonably likely to cause or incite hatred of any race, religion, creed, class or ethnic group. Content articulating views calculated to cause offence to or incite hatred of any individual or group.”
Comment I posted to Pearson’s article.
“Content articulating views calculated to cause offence to or incite hatred of any individual or group.” This happens every time ‘believers’ of Anthropogenic Global Warming use the term ‘denier’ as an obnoxious and infantile attempt to link sceptics to the holocaust. I use the term ‘believer’ deliberately as it is no longer about science but about politics and belief, bordering on a religion. I wonder how Ethical Investments rationalise that. Maybe they need to do a morality check on themselves.
I really hope this comes right for you Jen, as it really isn’t fair
Note to you all, SL has guillotined discussion on the “Secondary Boycott” argument. SL didn’t appear to have a valid argument with regard the use of secondary boycott provisions to shut down political debate. I put a number of arguments to SL regarding the inappropriateness of using the TPA to ground an action in this case and SL didn’t challenge any of my arguments. Hardly a watertight case I would have thought. You can go and see for yourselves.
It’s very annoying that no-one has questioned Graham Young’s claims on this matter.
Young has repeatedly asserted that the objections of the “gay activists” were were to his publication of Muehlenberg’s article, when in fact the objections were to the moderation of comments on the article. This response to Young’s December blog post on the issue makes the distinction quite plainly. Far from being an attempt to stifle free speech, this story is about protection from vilification.
While all “The Domain” blogs moderate their comments, only at OLO does there appear to be a backlog of unheeded recommendations for deletion. If you, John Passant, Skepticlawyer, Larvatus Prodeo and Club Troppo want to align yourselves financially with OLO, then it would seem a simple matter of due diligence to ensure that OLO’s moderation values also line up.
ringil; when I was young[er] I protested against the Festival of Light because they advocated censorship of more liberal atitudes about how society should be constructed; I don’t think the opposition to the OLO article comes from the same psychology but it appears to be equally censorious. Putting aside the legal issue of secondary boycotts, which are notoriously difficult to prove and remedy, I am interested in the psychology of the gay/marriage issue and their vehement hostility to any critic of their ambition to have legal gay marriage; I say legal gay marriage because hetereo unions not based on marriage are rapidly growing and have no effective legal distinction from gay de facto unions.
I am also interested in the outrage against the comments on the OLO article which are here;
http://forum.onlineopinion.com.au/thread.asp?article=11268&page=0
Could you select a couple which you think substantiate the claims being made; it already appears that the moderators have removed a number of comments so it was not a free for all.
From Graham Young:
There is no backlog of “unheeded recommendations for deletion”, a comment on the bottom of my blog post about the event is no authority for the grounds on which the corporates withdrew their advertising.
Jennifer,
All legalities aside ,two major corporations, based half a world from each other, make the same decision?
I smell RAT – here in Oz , in advertising land .
It is, after all, a rather innocuous article containing very little author opinion.
Hope someone flushes out the rat. Good luck
Jen,
I am sorry to see that advertising has been withdrawn from your blog for no reason connected with you.
I think that the companies (such as ANZ and BHP) that give in to pressure groups are making a rod for their own backs. The tactics are reminiscent of the actions and tactics of the Yakuza in Japan which are a part of the corruption through business, public service and political parties that some leaders would like to change but still pervades the country holding back progress.
Cohenite’s point about France allowing trade unions to bypass secondary boycott provisions are interesting. There is plenty of corruption in France and for that matter in Italy.
(disclaimer my super fund has shares in both BHP and ANZ and in a European Share fund)
Keep Strong
Sorry, I didn’t have time to read the other two articles. However I’ll put in my two cents worth anyway. Color me unimpressed with the original article.
One of the main points from the article: Men tend to be hornier than women. The premise is true for hetero males, including yours truly. In recent years, I was surprised to learn that for many women, sex compares unfavorably with chocolate! Anyway, the roving eye problem is supposed to rear its ugly head more frequently in gay unions, than in more-or-less traditional heterosexual unions.
Is the generality true for gay men? Hell if I know. It would have been nice if the author had cited a scientific study on the subject. Just for fun, suppose that the generalization about differential libidos is true, and that it extends to homosexual relationships. Then we’d expect lesbian couples to be more faithful than traditional heterosexual couples! The differential libido argument can cut both ways.
Again, just for fun, suppose that homosexual relationships are inherently less stable than the traditional hetero ones. (In the US, the divorce rate for hetero married couples is on the order of 50%.) The next question is: So what?
Social Conservatives, to use an American label, would have us believe that increased tolerance for nonstandard sexual expression on the part of approximately 3% of the population will somehow chip away at the concept of marriage that’s relevant to the other 97%. Give me a break!
My non-lawyer’s perspective on a few legal advantages of marriage.
•If one spouse is temporarily unavailable, the other spouse can make on-the-spot medical and other decisions on behalf of their children.
•Hospital visitation and medical directives for one’s incapacitated spouse.
•Inheritance. If one spouse dies intestate, there’s an excellent chance that the surviving spouse will eventually get a piece of the pie.
The real issue: Why should the legal, medical, and financial advantages of marriage be withheld from people who have nonstandard sexual orientations? Whatever happened to the quaint idea of equality under the law?
On a side note, we Americans had anti-sodomy laws in a few places until 2006, if I remember correctly. Homophobia–and the institutionalization thereof–is not very Libertarian, is it?
You say –
“As Christopher Pearson writes in The Australian today, issues of principles are at stake here concerning freedom of political debate in this country and the character of our civilization.”
I say –
May I ask if you are the Jennifer I replied to below on EnPassant?
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Jennifer, John, (ladies first)
I’ll be sending this to Mr.Bartlett too.
Mentioned above that my interpretation of what was happening was darker than John’s.
I’ve taken time to follow that pingback above through Andrew B’s site then down the links ‘til I found a letter written by the person who lodged complaints with the advertisers at question.
Seems, like me, that person found it necessary to write to Mr. Young and like me they found his response unacceptable in the extreme. (I’d best not go into the details)
I chose to stop wasting my time by contributing to OLO – it wasn’t a difficult choice since I found myself reacting so badly the whole show became depressing – enough loonies out the front door any day.
This other person, however, chose to take affirmative action and in result essentially had everyone’s advertising bombed.
It is a shame that this action caused grief to others not involved directly but Mr. Young has been acting in ways that contradict the standards of his own charter.
I note that some comments to Andrew express the same sentiment.
It goes this way on the face of the record –
OLO has a huge list of contributors; some quite prolific
By going to the list they can be accessed as can any of their contributions.
A significant number of those listed however seem to have had only a few bites of the cherry and then moved on.
A reasonable person, having noticed this, might become curious and search through the files in order to discover the reason.
That person, upon discovering – that these minor contributors were variously put down with escalating ridicule, sarcasm, ignore-ance, then abuse; seemingly staged in such a way to divert them, burr them up, embarrass, anger, then finally see them on their way – would become reasonably convinced the moderator of that weblog condoned that activity.
Looking at the files from another angle reveals that a large number of the pen-names listed only contributed once.
They went to a fair amount of bother to sign up and register for that one contribution which raises the question as to whether they were somehow put off bothering again, dropped dead suddenly, or are maybe merely being listed there as bums on seats to bolster Mr. Young’s resume’?
A hard core of Mr. Young’s contributors, at first glance, appear of leftish/green persuasion. The same people first appearing as all sweetness and light soon resort to spite at the slightest excuse.
They do not speak their own piece forthrightly rather attack viciously to the extent that they do their own professed cause irreparable harm.
It is the way that this sort of thing is choreographed on the pages mentioned here and others that leads me to suspect that these actions are intended to harm certain causes that these pages claim to foster.
Goebbels himself couldn’t have done a better job.
Nothing is more intlerant that rabid lefties.
Why the gay demographic (tiny) wields such insane levels of power and does not realize the danger fraught in that is beyond me.
Jennifer,
I have a small suggestion. First join Free Association.
http://free-association.net
It’s a small social networking site, which strongly respects the right to free speech. Second, contact Deborah. She’s an attorney who specializes in privacy issues. So far, she has been able to attract funding to support her projects in the nonprofit world.
I told Deborah about your outstanding blog, and about your funding dilemma. She says that she’d be happy to brainstorm with you.
Regards,
Larry
A lot of people have jumped to conclusions on this topic without actually knowing the facts. I would encourage everyone to read this blog by Gregory Storer. It contains the facts minus the hyperbole, spin and speculation.
Michael.